Citation Nr: 0829961
Decision Date: 09/04/08 Archive Date: 09/10/08
DOCKET NO. 06-35 441 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for coronary artery disease
(CAD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Ishizawar, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
February 1943 to November 1945. This matter is before the
Board of Veterans' Appeals (Board) on appeal from a December
2004 rating decision of the Houston, Texas Department of
Veterans Affairs (VA) Regional Office (RO) that denied
service connection for CAD, a right hip disability, and right
knee disability. On the veteran's November 2006 VA Form 9
(substantive appeal), he indicated that he wanted a Travel
Board hearing. In a form accompanying his substantive
appeal, he indicated that he did not want a Travel Board
hearing. In July 2008, the RO contacted the veteran for
clarification; he indicated that he did not want a hearing.
The veteran had also initiated appeals of denials of service
connection for a right hip disability and right knee
disability. An October 2006 rating decision granted such
benefits; consequently, those matters are not before the
Board.
FINDING OF FACT
CAD was not manifested in service or in the first year
following the veteran's discharge from active duty, and the
preponderance of the evidence is against a finding that such
disability is related to the veteran's service.
CONCLUSION OF LAW
Service connection for CAD is not warranted. 38 U.S.C.A.
§§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA
applies to the instant claim. Upon receipt of a complete or
substantially complete application for benefits, VA is
required to notify the claimant and his representative of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1) (including as amended effective May
30, 2008; 73 Fed. Reg. 84, 23353 (April 30, 2008)). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The veteran was advised of VA's duties to notify and assist
in the development of his claim prior to its initial
adjudication. Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006). An August 2004 letter explained the evidence
necessary to substantiate his claim, the evidence VA was
responsible for providing, and the evidence he was
responsible for providing. He has had ample opportunity to
respond/ supplement the record, and is not prejudiced by any
technical notice deficiency (including in timing) that may
have occurred earlier in the process. While he was not
advised of the criteria for rating CAD, or those governing
effective dates of awards, he is not prejudiced by lack of
such notice (see Dingess/Hartman v. Nicholson, 19 Vet. App.
473, 490-91 (2006)), as rating and effective date criteria
have no significance unless the claim is allowed, and this
decision does not do so.
The veteran's service treatment records (STRs) are associated
with his claims file, and pertinent postservice treatment
records have been secured to the extent possible. In this
regard it is noteworthy that when he filed the instant claim
the veteran indicated he was receiving ongoing treatment for
chest pain. He was The RO arranged for an authorized VA
examination in September 2006 from a Dr. W. He was provided
forms to complete authorizing VA to obtain records from
providers of pertinent private treatment. He did not return
a completed form for Dr. W. Accordingly, the Board concludes
that the veteran does not believe records from Dr. W. are
pertinent, or does not think such records are available, or
does not want such records considered. At any rate, the
Board is not able to obtain such records without the
veteran's authorization. VA's duty to assist is met.
Accordingly, the Board will address the merits of the claim.
B. Factual Background
The veteran's STRs show that in June 1944, he complained of
pain in the left lower chest; aspirin and liniment were
prescribed. Subsequent STRs are silent for any complaints,
findings, treatment, or diagnosis relating to chest pain or a
heart disorder, including CAD. On November 1945 separation
examination, the veteran's cardiovascular system was normal;
his chest X-ray was negative.
On December 1993 VA Joints examination, it was noted that the
veteran had coronary artery surgery in December 1981.
September 2003 to August 2004 private treatment records from
Dr. G.K.M., note that between September 2003 and November
2003, the veteran's cardiovascular examinations were
unremarkable. CAD was assessed in August 2004.
January 2004 to July 2004 and May 2007 to December 2007 VA
outpatient treatment records note that the veteran had a
myocardial infarction and coronary artery bypass graft in
1980, and that CAD was diagnosed at that time.
On September 2006 VA examination, the veteran reported
suffering from CAD since 1944. He stated that he experiences
constant angina, shortness of breath, and fatigue. He also
stated that he suffers from congestive heart failure (CHF)
and had to undergo a coronary bypass as a result of his heart
condition. After reviewing the claims file, including the
veteran's STRs, the examiner opined, "It is less likely than
not that the [CAD] is related to the pain described in
service given the treatments prescribed as documented in the
record."
C. Legal Criteria and Analysis
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection also may be granted for any disease
initially diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection, there
must be medical evidence of a current disability; medical or,
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the present disability. See Hickson v. West, 12
Vet. App. 247 (1999). The determination as to whether these
requirements are met is based on an analysis of all the
evidence of record and an evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1 (1999);
38 C.F.R. § 3.303(a).
Certain chronic diseases (including arteriosclerosis and
organic heart disease) may be presumed to have been incurred
or aggravated in service if they became manifest to a
compensable degree within a year following discharge from
active duty. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. § 3.307,
3.309.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the
evidence is assembled, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
It is not in dispute that the veteran has CAD. However, such
disability was not manifested in service, and there is no
evidence that it was manifested in the first postservice
year. Consequently, service connection for CAD on the basis
that it became manifest in service and persisted, or on a
presumptive basis (as a chronic disease under 38 U.S.C.A.
§ 1112) is not warranted.
What the veteran must show to establish service connection
for CAD in these circumstances is that such disability
somehow is related to (i.e., was incurred or aggravated in)
his service. There is no competent evidence that shows, or
suggests, that there indeed is a nexus between the veteran's
CAD and his service.
The earliest clinical notation of CAD of record is in the
veteran's VA "problem list" which notes the condition as
having its onset in 1980. A 1993 record notes a history of
coronary artery surgery in 1981. Significantly, a lengthy
time interval between service and the earliest postservice
notation of a disability for which service connection is
sought is, of itself, a factor against a finding of service
connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.
2000). Here, the interval between the veteran's discharge
from service and the initial clinical notation of CAD in 1980
is some 35 years. While the veteran alleges that he has had
coronary artery disease since his service, there is no
clinical support for this allegation; the records secured
pursuant to his authorizations do not mention a history of
CAD prior to 1980. Because coronary artery disease is not a
disability that may be established by lay observation, the
veteran's own statements indicating he has had such
disability since service are not competent evidence. See
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
Furthermore, the September 2006 VA examination report is the
only competent (medical opinion) evidence in the record that
specifically addresses whether the veteran's current CAD is
related to his military service. The examiner reviewed the
veteran's STRs, noted that in June 1944 he complained of pain
in the left lower chest and was prescribed aspirin and
liniment, and opined, "It is less likely than not that the
[CAD] is related to the pain described in service given the
treatments prescribed as documented in the record." This
conclusion is consistent with contemporaneous records that
show that chest pain in service was treated with liniment
(indicating that the pain was considered musculoskeletal
rather than cardiovascular in origin). [Liniment is "an
oily liquid preparation to be used on the skin," typically
used to relieve muscle pain and/or soreness. DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 1075 (31st ed. 2007).] As
this opinion was by a qualified physician, is based on a
review of the record, and includes an explanation of the
rationale for the opinion, it has substantial value. Because
there is no competent evidence to the contrary, the Board
finds the opinion persuasive.
In light of the foregoing, the Board finds that the
preponderance of the evidence is against the veteran's claim.
In such a situation, the benefit of the doubt doctrine does
not apply, and the claim must be denied.
ORDER
Service connection for CAD is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs